Veditz v. Athey

• Decision Date: 13 July 1965
• Docket Number: No. 321,321
• Citation: Veditz v. Athey, 239 Md. 435, 212 A.2d 115 (Md. 1965)
• Parties: Marie VEDITZ v. Charles E. ATHEY et al.
• Court: Maryland Court of Appeals

Page 435

239 Md. 435

212 A.2d 115

Marie VEDITZ v.Charles E. ATHEY et al.

No. 321.

Court of Appeals of Maryland.

July 13, 1965.

Charles G. Page and J. Calvin Carney, Baltimore, for appellant.

Daniel H. Honemann, Baltimore (Hinkley & Singley, Baltimore, on the brief), for appellees.

Argued May 6, 1965, Before HORNEY, MARBURY, SYBERT, OPPENHEIMER, and BARNES, JJ.

Reargued June 2, 1965, Before PRESCOTT, C. J., and HAMMOND, HORNEY, MARBURY, SYBERT, OPPENHEIMER, and BARNES, JJ.

OPPENHEIMER, Judge.

The testatrix, in Item Second of her Will, bequeathed household furniture and personal effects to one niece.In her Second Codicil, the testatrix provided, in part as follows: 'FIRST: * * * I therefore modify Item Second of my said Will by adding thereto the following sentence: * * *.'The sentence devised a one-half interest in certain real estate in the Severna Park area to another niece, if she survived the testatrix.In her Third Codicil, the testatrix revoked Item Second of her Will and substituted in place thereof a bequest to the second niece of all her personal property, with certain exceptions, located in the real estate referred to in her Second Codicil.The second niece, Marie Veditz, the appellant herein, (Marie), instituted proceedings in the Circuit Court for Anne Arundel County for a construction of the Will and Codicils.The court below held that the devise to Marie contained in the Second Codicil had been revoked.Marie has appealed from that decree.

The testatrix, Matilda Held, died, unmarried, on October 16, 1962, at the age of 94.Her next of kin were the two nieces, Rosa Fenner(Rosa) and Marie.Rosa was the daughter of a deceased sister of the testatrix, was married at the time of the testatrix's death, and had three sons.Marie was the adopted daughter of another deceased sister of the testatrix and was unmarried.

The testatrix left a Will and three Codicils, which were duly probated in the Orphans' Court of Anne Arundel County, as follows:

(a) Will dated May 23, 1955.

(b) First codicil dated July 12, 1955.

(c) Second codicil dated May 8, 1958.

(d) Third codicil dated August 6, 1958.

Item Second of the Will reads as follows:

'SECOND: I give and bequeath unto ROSA FENNER, daughter of my deceased sister, Emma Jochum, all of my furniture, silver, china, jewelry, linens and all other personal and household effects, with the exception of those articles hereinafter specifically described and bequeathed, to be hers absolutely, provided that she survives me.If the said Rosa Fenner does not survive me, then I direct that her descendants living at the time of my death shall take in equal shares per stirpes the legacy which she would have received under this paragraph of my Will.'

The Will then sets forth legacies and bequests to various persons, including a bequest of $500 to Marie if living.By Item Thirteenth of the Will, all the rest, residue and remainder of the testatrix's property is left to the Maryland Trust Company(now the Maryland National Bank) in trust for the benefit of Rosa for life; upon her death, after a bequest of not over one-half of the corpus or $5,000, whichever is less, to the Rev. John McPherson and his family, the remainder of the corpus is bequeathed to Rosa's sons or their respective living descendants.By Item Eightteenth the testatrix nominated the appellees, Charles E. Athey and the Maryland National Bank, her Executors.These Executors duly qualified.

The First Codicil contained a number of bequests of articles of furniture to various legatees, including Marie.Item First of the Second Codicil reads as follows:

'FIRST: Since executing my said Will and Codicil, I have acquired the property known as 411 Laurel Road, Severna Park, Maryland.I therefore modify Item Second of my said Will by adding thereto the following sentence:

'I give and devise unto my niece, MARIE VEDITZ, to be hers absolutely provided that she survives me, any interest which I may own at the time of my death in the property known as 411 Laurel Road, acquired by me on October 1, 1957, from Nelle E. Gardner."

The real estate referred to in Item First of the Second Codicil was a house which the testatrix had purchased on October 1, 1957.On October 15, 1957, fifteen days after she acquired this property, she executed a strawman deed resulting in the conveyance of a one-half interest in the property back to herself for lief with the remainder to Marie in fee, subject to a power reserved in the testatrix to mortgage, convey and appoint.Outright ownership of the other one-half interest remained in the testatrix.The testatrix during her lifetime did not exercise the powers vested in her as life tenant as to the undivided one-half interest and on her death this individed interest vested in fee simple in Marie as remainderman.The testatrix's Second Codicil was executed approximately seven months after the strawman deed, to which reference has been made.

Item First of the testatrix's Third Codicil reads as follows:

'FIRST: I revoke Item SECOND of my Last Will and Testament and substitute in place thereof the following:

'SECOND: I give and bequeath unto my niece, MARIE VEDITZ, all of my furniture, silverware, china, jewelry, linens and other personal and household effects located in my home at 411 Laurel Road, Severna Park, Maryland, with the exception of those articles specifically described and bequeathed in my Last Will and Testament or Codicils thereto, to be hers absolutely.'

The concluding paragraph of the Third Codicil reads as follows:

'FINALLY: In all other respects I do hereby ratify and confirm the provisions of my said Last Will and Testament executed on May 23, 1955, as modified by the First Codicil thereto executed on July 12, 1955, the Second Codicil executed on May 8, 1958, and by this Codicil.'

The Will and the first two Codicils were prepared by Mr. Frederick J. Singley, Jr. and the third Codicil was prepared by Mr. John H. Somerville; both lawyers were partners in the firm of Hinkley and Singley.

After Miss Held's death, when it became evident that a dispute existed as to the one-half interest in 411 Laurel Road, by agreement, the property was sold.One-half of the net proceeds in the amount of $11,250 was deposited in a savings account to be held by the Executors until the determination of this case.Miss Held's gross estate, including the other one-half of the proceeds of the sale of 411 Laurel Road, was $116,445.22.The testatrix's furniture and chattels were appraised at $786.30.Apart from her claim to the other one-half of the proceeds of the sale of the real estate, Marie became entitled to assets, including the proceeds of her one-half interest in 411 Laurel Road a legacy of $500, the specifically bequeathed furniture and chattels, and certain bank accounts which she received by survivorship, in the total amount of $26,770.69.The evidence as to the value of the testatrix's estate and various items thereof was first excluded by the lower court, upon objection of the Executors, but the objection was later withdrawn.The evidence as to the relationship of the two nieces, the acquisition of the real estate, and the strawman deed in connection therewith, was admissible as extrinsic evidence pertaining to the circumstances of the testatrix, the objects of her bounty and the nature of the property involved.Shellady, Inc. v. Herlihy, Executor, 236 Md. 461, 465, 466, 204 A.2d 504(1964) and authorities therein cited.

During the trial, the appellant, Marie, proffered testimony of a number of persons, including that of Mr. Athey the coexecutor under the Will, to the effect that they had heard the testatrix make comments indicating an intent that Marie should succeed to the entire property, 411 Laurel Road.These alleged declarations by Miss Held were made from the time immediately prior to the purchase of the property to periods shortly before her death.Testimony of another witness was also proffered to the effect that the testatrix had stated just before she purchased the property that she was buying it so that Marie would have something in her old age.The court below excluded all this proffered testimony on the ground that, where the intention of testator clearly appears from the words used in the testamentary documents, extrinsic evidence that something different was meant than that which the language imports is inadmissible.The court ruled further that no latent ambiguity exists in the testamentary documents in this case.During the trial, Mr. Somerville had been called by Marie's counsel and testified as to what took place in his office between the testatrix and himself when the Third Codicil was prepared and executed.Judge Sachse, in his opinion, excluded this testimony.

In his opinion, Judge Sachse held that, under the law, Item Second of the Will became Item Second as modified by the Second Codicil thereto and that any reference thereafter to such Item of the Will referred to it as modified by the Second Codicil.He held that, in Item First of the Third Codicil, the testatrix by referring specifically to her Will and the First and Second Codicils, giving the dates thereof, definitely showed that she knew of and recognized the Second Codicil which changed Item Second of her Will.The judge concluded that by her Third Codicil the testatrix revoked Item Second of her Will as it was modified and changed by her Second Codicil and that, therefore, the one-half interest in the real estate, which is the subject of this litigation (now the one-half of the net proceeds of the sales thereof), is vested in the Maryland National Bank as Trustee under the residuary provisions of the Will.

The appellant contends that the lower court erred in holding that the words in the Item First of the Third Codicil had a single, clear meaning.It is her position that this Item of the Third Codicil was meant to refer only to the document dated May 23, 1955, titled the Last...